How the Voting Rights Act's Preclearance Worked Before Shelby County

On June 25, 2013, Chief Justice John Roberts read from the bench in a case brought by Shelby County, Alabama, a fast-growing suburban county south of Birmingham. By a vote of five to four, the Supreme Court held that the formula Congress had used to decide which states and localities needed federal permission before changing their voting rules was out of date and could no longer be used. The Court did not strike down the permission requirement itself. It did not need to. Without a formula saying who was covered, nobody was. Within hours, Texas officials said they would put into effect a strict photo ID law that federal judges had blocked under the old system the year before. Within weeks, North Carolina's legislature passed a sweeping election bill that added an ID requirement, cut early voting and ended same-day registration. To understand what changed that day, you have to understand a piece of machinery that most Americans never knew existed: preclearance.

In short: From 1965 to 2013, Section 5 of the Voting Rights Act required certain states and counties, mostly in the South, to get approval from the Justice Department or a federal court in Washington before changing any voting rule. It stopped many discriminatory changes before they took effect. Shelby County v. Holder ended it by striking down the coverage formula, and several states moved quickly to change their rules.

Why Congress built a gatekeeper

Before 1965, the Fifteenth Amendment had promised for nearly a century that the right to vote could not be denied on account of race. In much of the South that promise meant almost nothing. States used literacy tests, poll taxes, white primaries, purges and intimidation to keep Black citizens from registering and voting.

Congress tried lawsuits first. The Civil Rights Acts of 1957, 1960 and 1964 let the Justice Department sue counties that discriminated against Black voters. The trouble was speed. A lawsuit could take years. When the government finally won, a county could simply adopt a new rule that did the same thing in a different way, and the process began again. Courts were always one rule behind.

The Voting Rights Act of 1965, passed after the violence on the Edmund Pettus Bridge in Selma in March of that year shocked the country, attacked that problem directly. Instead of making the government chase each discriminatory rule after the fact, it flipped the burden in the places with the worst records. Those jurisdictions would have to show, before any change took effect, that it was not discriminatory.

That was Section 5, the preclearance requirement. Section 4 decided who was covered.

How the coverage formula worked

The formula in Section 4(b) was designed to capture the places where discrimination was most entrenched without naming them outright. A state or county was covered if two things were true: it used a test or device, such as a literacy test, as a condition for voting, and fewer than half of its voting-age residents were registered or voted in the 1964 presidential election. Congress later added the 1968 and 1972 elections to the formula, and in 1975 it expanded the definition of a test or device to include English-only election materials in places with large language-minority populations.

Over time, the formula covered nine states in full: Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia. It also covered counties and townships in several other states, including parts of California, New York, North Carolina, Florida, Michigan, New Hampshire and South Dakota.

There was a way out. A covered jurisdiction could "bail out" by showing a federal court in Washington that it had a clean record for the previous ten years. A number of jurisdictions, mostly in Virginia, did so. And there was a way in: under Section 3(c), a court that found intentional discrimination could order a jurisdiction not previously covered to go through preclearance.

How preclearance worked in practice

When a covered jurisdiction wanted to change anything about voting, it had to submit the change for review. That meant big things, like a new congressional map or a voter ID law, and small things, like moving a polling place from a school to a church, changing the hours of an early-voting site or annexing land into a city.

The jurisdiction had two routes. It could submit the change to the Justice Department's Civil Rights Division, which had sixty days to object. If the department did not object, the change could take effect. Or it could ask a three-judge federal court in the District of Columbia to approve it.

The standard was whether the change had a discriminatory purpose or would leave minority voters worse off than before, a test the courts called retrogression. If a county moved its only polling place from the middle of a Black neighborhood to a white suburb miles away, and could not justify the move, the change would be blocked.

Over the decades, the Justice Department objected to thousands of proposed changes, and a much larger number of changes were never submitted in their original form because jurisdictions knew they would be blocked. That deterrent effect is hard to measure but was, by the account of officials who ran the system, a large part of how it worked. Election officials in covered states learned to consider effects on minority voters before proposing changes, because they would have to defend them.

Before and after: two ways to fight a bad rule

The clearest way to see what preclearance did is to compare it with what replaced it.

Under preclearance, imagine a county commission in a covered state that wants to switch from district elections, where each neighborhood picks its own commissioner, to at-large elections, where the whole county votes for every seat. In a county with a white majority that votes as a bloc, that switch can wipe out the seats Black voters had been able to win. Under Section 5, the county had to submit the change and explain it. If the Justice Department or the court in Washington concluded that the change would leave Black voters worse off, it never took effect. The old system stayed in place, and the election went forward under rules that had already been tested.

Now imagine the same change after 2013. The county adopts it and holds an election. If voters or civil rights groups think it is discriminatory, they must find lawyers, hire experts in statistics and local history, file a lawsuit under Section 2, and prove their case. That process often takes years and can cost a great deal in expert fees and lawyers' time. Meanwhile, one or more elections are held under the challenged rule, and the officials elected under it hold office. Even if the plaintiffs win, the remedy comes late.

That asymmetry is the whole point. Preclearance put the burden of proof and the cost of delay on the government that wanted to change the rules. Section 2 puts them on the voters who are harmed. For small changes, like moving a polling place or shortening early-voting hours, a full lawsuit is rarely worth it, so many such changes now go unchallenged whether or not they are fair.

There is also an information problem. Preclearance required jurisdictions to tell the federal government about every change. Without it, nobody keeps a central record of voting changes in formerly covered places, and civil rights groups and journalists have to track them county by county.

The best case against preclearance

Preclearance was always controversial, and the case against it deserves a fair statement.

It treated states unequally. Nine states and many localities had to ask permission from Washington to make changes that other states could make freely. The Constitution generally assumes states are equal sovereigns, and the Court had approved the unequal treatment in 1966, in South Carolina v. Katzenbach, only because the conditions it addressed were extraordinary.

It was based on old data. By the 2000s, registration and turnout among Black voters in some covered states matched or exceeded those of white voters. The formula still relied on registration and turnout from the 1960s and 1970s.

It was burdensome. Local officials in covered jurisdictions had to submit even minor changes and wait for approval, which cost time and money.

When Congress reauthorized the law in 2006, it extended Section 5 for twenty-five years without updating the formula. The vote was overwhelming: ninety-eight to nothing in the Senate and three hundred ninety to thirty-three in the House, and President George W. Bush signed it. But the legislative record did not revisit the formula, and that became the Court's main objection.

Chief Justice Roberts's opinion in Shelby County relied on these points. The country had changed, he wrote, and Congress could not continue to rely on a formula grounded in decades-old data to single out some states. Congress was free to write a new formula based on current conditions.

The answer the dissent gave

Justice Ruth Bader Ginsburg, writing for the four dissenters, answered that the improvement in covered states was a reason to keep preclearance, not to end it. The record Congress assembled in 2006 showed continuing efforts to discriminate in covered jurisdictions, including many objections in the years just before reauthorization. In one of the most quoted lines in modern Court history, she compared ending preclearance because it was working to "throwing away your umbrella in a rainstorm because you are not getting wet."

The dissent also argued that the Court was substituting its judgment for that of Congress on a question the Fifteenth Amendment specifically gives Congress power to address. Congress had held extensive hearings and voted by huge margins. The Court, in her view, should have deferred.

Here is my own view, labelled as opinion. The majority had a point about the formula's age, and Congress should have updated it in 2006. But the Court knew that Congress was unlikely to pass a new formula, and it struck down the old one anyway. The practical result was that a system that had stopped discriminatory changes for nearly half a century disappeared overnight, with nothing in its place.

What states did next

The changes came fast. Texas moved to enforce its photo ID law the same day. North Carolina's 2013 election law, passed weeks after the ruling, was later struck down by the federal appeals court for the Fourth Circuit, which found that its provisions targeted Black voters with almost surgical precision. Other formerly covered states and counties closed polling places, purged voter rolls and changed rules that would previously have needed approval.

Not every change was discriminatory, and some had defensible reasons. Without preclearance, though, the burden moved back to voters and civil rights groups to sue after the fact, under Section 2 of the Voting Rights Act, which bans voting practices that discriminate on account of race nationwide. That is the slower, case-by-case model Congress had tried to replace in 1965.

Section 2 itself has narrowed since. In 2021, in Brnovich v. Democratic National Committee, the Court set out guideposts that made some Section 2 claims harder to win. And in April 2026, in Louisiana v. Callais, the Court held that the Voting Rights Act did not require Louisiana's second majority-Black congressional district and that the map was an unconstitutional racial gerrymander. The tools left to protect minority voters are fewer than they were.

Congress has tried to restore preclearance. The House passed the John Lewis Voting Rights Advancement Act, which would have created a new coverage formula based on recent violations, in 2019 and again in 2021. It did not overcome a Senate filibuster. Some states have filled the gap with laws of their own. New York passed a state voting rights act in 2022 that includes a preclearance requirement for localities with records of discrimination, and Connecticut and a few other states have adopted similar measures.

Why this matters beyond the South

It is tempting to treat preclearance as a regional story about the old Confederacy. The coverage map was never that simple, and the questions it raised are national. Polling place closures, purges of voter rolls and shifts in early-voting hours happen in every state, under officials of both parties. The core idea behind Section 5, that the people who change election rules should have to show the change is fair before it takes effect, is one any state could adopt on its own, and some now have.

What you can do

Preclearance is gone, but much of what it guarded is still decided by people you can reach.

• Check your registration and rules now. The voting page lists registration deadlines, voter ID rules and mail and early voting for every state, linked to each state's election office. Rules change; look again before each election.
• Watch the Court. Voting cases continue to reach the Supreme Court. The court watch page follows this term's opinions and emergency orders with the Court's own summaries.
• Ask Congress about a new formula. A new Congress takes office in January 2027. Find your members through the representatives lookup and ask whether they would support restoring preclearance with a formula based on current conditions.
• Look at state voting rights acts. Several states have passed their own. The voting rights and redistricting page follows those efforts and the fights over maps and rules.
• Volunteer as a poll worker or with a voter protection group. The organizations directory lists voting rights nonprofits in every state.

Preclearance worked because it caught bad rules before anyone was hurt by them. The work now is building something that does the same.